A power of attorney is a legal document that gives an individual (known as “the agent” or “attorney-in-fact”) the authority to act on behalf of another person (called “the principal”). Like many legal documents, do I need witnesses for a power of attorney (POA) in order for it to be enforced? Let’s explain a little more about a POA first.
The agent can have broad legal authority or limited authority to make decisions about the principal’s property, finances, or medical care. A POA is frequently used in the event of a principal’s illness or disability, or when the principal can’t be present to sign necessary documents for financial transactions.
The types of powers of attorney include:
- Conventional, also known as a limited power of attorney;
- Durable, which lasts for a lifetime unless you cancel it;
- Springing, which only comes into play for specific events; and
- Medical, also known as a durable power of attorney for healthcare.
Each state has its own specific requirements for powers of attorney.
For example, nj.com’s recent article entitled What makes a power of attorney legal in N.J.?” says that, under New Jersey State § 46:2B-8.9, a power of attorney must be in writing, duly signed and acknowledged, and notarized. The acknowledgement may be taken by an authorized individual in the state of New Jersey or in any other state or foreign jurisdiction. In the Garden State, there’s no witness requirement for a power of attorney.
However, New York’s power of attorney statute requires two witnesses.
So, do I need witnesses for a Power of Attorney? Even if the answer is No, it is advisable. Here are a couple of reasons:
Many financial institutions examine the POA for witnesses and will question a document without a witness.
If the validity of a POA is called in question, a witness would be needed to swear that he or she saw the maker of the POA execute the instrument as their own act.
Regardless, do not go it alone. Engage the services of an experienced estate planning attorney admitted to practice law in your state as they can best advise you. If you do not have an attorney yet, Beck & Lenox can help.
Reference: nj.com (Aug. 2, 2021) : What makes a power of attorney legal in N.J.?”